Articles

D.C. Circuit Nixes NLRB Posting Requirement

Date: May 22, 2013

In a long-awaited decision, the U.S. Court of Appeals for the D.C. Circuit has struck down the National Labor Relations Board's mandate that all employers covered by the National Labor Relations Act post a notice of employee rights under the law. This article examines the controversy surrounding the Board's unprecedented posting requirement and the impact of the D.C. Circuit's decision.

As readers of past issues of this newsletter will recall, in 2011 the National Labor Relations Board (“NLRB”) issued a regulation mandating that all employers subject to the National Labor Relations Act post a notice summarizing the rights of employees under that statute. The notice, which was drafted by the NLRB, includes information regarding employees' rights to form or join a union and instructs employees about remedies available for certain employer conduct prohibited by the statute. The regulation generated significant controversy, both because a notice-posting requirement was unprecedented in the more than seventy-year history of the NLRB and because the notice posting requirement would apply to nearly all U.S. employers regardless of whether or not their employees were unionized.

The regulation became the subject of court challenges immediately upon its adoption by the NLRB. The Board twice delayed the scheduled implementation date of the regulation due to the pending litigation. In the first judicial decision on the issue, the U.S. District Court for the District of Columbia issued a ruling on March 2, 2012, upholding the NLRB's authority to require employers to post the notice. Yet the court found that a related portion of the rule –declaring that the failure to post the notice would itself be considered an unfair labor practice – exceeded the NLRB's authority.

The groups leading the challenges to the posting requirement subsequently petitioned the Court of Appeals for the D.C. Circuit to issue an emergency injunction to keep the posting requirement from taking effect pending an appeal of the District Court's decision. The D.C. Circuit granted the requested injunction on April 17, 2012. The fate of the notice posting requirement has thus been on hold for the last year as the D.C. Circuit considered the legality of the NRLB's action.

On May 7, 2013, the D.C. Circuit issued its opinion, which struck down the notice posting requirement. Although much of the argument on this issue focused on a statutory provision granting the NLRB the authority to issue certain regulations necessary to implement the Act, the D.C. Circuit focused its analysis on another portion of the Act – Section 8(c). Section 8(c) was added to the National Labor Relations Act as part of a group of amendments passed in 1947, and directs that an employer's expression of views or opinion on workplace issues cannot be considered a violation of the Act, or considered as evidence in support of any other violation. The D.C. Circuit deemed that the mandated notice (and the associated penalties for failing to post it) amounted to a violation of an employer's right under Section 8(c) to express, or refrain from expressing, an opinion.

Takeaway for employers: The D.C. Circuit's decision represents a significant blow to the NLRB's efforts to require employers to post a notice advising of the rights protected by the National Labor Relations Act and the potential benefits offered by collective bargaining. The NLRB may seek to have the case reheard by the entire D.C. Circuit, or may petition for review by the Supreme Court. Additionally, challenges to the notice posting rule remain pending in other federal courts. It appears, however, that the notice posting requirement is unlikely take effect at any time in the near future.